SAN FRANCISCO (CBS SF) — The city of San Francisco’s pioneering ban on tobacco sales by pharmacies has survived its latest challenge, a constitutional lawsuit by the Safeway grocery store chain.

U.S. District Judge Claudia Wilken of Oakland on Friday dismissed a lawsuit in which Pleasanton-based Safeway Inc. claimed the measure was an unconstitutional restriction on its right to conduct a lawful business.

Wilken wrote that the current version of the law is “a reasonable and permissible use” of the city’s power to pass laws to protect the public.

“The protection of a vested property right in a business permit generally must yield to the state’s concern for the public health and safety and its authority to legislate for the protection of the public,” Wilken wrote.

The law banning the sales of cigarettes and other tobacco products by pharmacies was originally enacted by the Board of Supervisors in 2008 and was the first of its kind in the nation.

The board’s rationale was that because pharmacies provide health-related services, they should not be allowed to give consumers “tacit approval” for disease-causing cigarettes by selling the products.

In its initial form, the ordinance exempted from the ban so-called “big box stores” that contain pharmacies, such as Safeway grocery stores and large discount retailers.

But the Board of Supervisors amended the law to eliminate that exemption last year after Walgreen Co. won a state court lawsuit that claimed the law discriminated against stores that operate primarily as pharmacies.

Safeway, which has 10 grocery stores containing pharmacies in San Francisco, then filed its federal lawsuit in February.

Safeway spokeswoman Susan Houghton said company officials had not yet seen the ruling and would not be able to comment until next week on whether they plan to appeal.

“We’re certainly disappointed,” Houghton said. “We will have to read the ruling and evaluate our next steps.”

San Francisco City Attorney Dennis Herrera, whose office defended the law, said, “Those who operate pharmacies have chosen to participate in our health care delivery system, and that should not include the delivery of cigarettes.

“I am grateful that Judge Wilken rejected the argument that Safeway … has a constitutional right to sell addictive tobacco products,” Herrera said.

In addition to the lawsuits by Safeway and Walgreen, a third challenge was filed in 2008 by Philip Morris USA Inc., the nation’s largest tobacco company.

That lawsuit, filed in federal court and assigned to Wilken, claimed the ban violated Philip Morris’s right of free speech by curtailing the company’s advertising and displays in drugstores.

But Wilken and a federal appeals court both rejected that claim, saying that the ban regulates only conduct—the sale of cigarettes—and not speech about cigarettes.

(Copyright 2011 by CBS San Francisco. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.)

Comments (7)
  1. Dee says:

    San Francisco bans tobacco legally sell in Stores , but illegal drug is sold any where over there such as Pier 39 and a round , 9 st , 10 st …..oh my god , and it seems whole SF area . Government and law makers in SF might have nothing to do , so they feel shame to get pay from tax payers then …….

  2. Big D says:

    What ever happened to free enterprise?

  3. theatris says:

    Sam Francissco = formerly er the haven of freedom now the nanny state that denies free will – kinda like the Catholic Church during the middle ages. They know better. Obviously, it’s quite OK to walk down the street where it reeks of skunk weed, but god forbid you smoke. Oh, we forgot -cars and buses put out far more carcinogens….. It’s really offensive that former denizens of the summer of love who rebelled against the establishment think that it is their place to limit the rights of others – it’s not just smoking – it’s the friggin’ nanny state. So, as a child of the 80s – I have only only one word for all of those nazis- you’re no better than the republicans telling us what we can or cannot do – F U all.

    1. theatris says:

      Oh – and before anyone complains that I can’t spell – I meant San Francisco – not Sam Francisco – big fingers little keyboard…

  4. Choice says:

    Hmmmm me thinks everybody protests to much.
    There is a place called smoke shops that people could get their cigs from.
    To the health conscience person is a pharmacy that sells cigs it is a conflict of interest.
    It is a no brainer
    A real tough one for the Judges and lawyers because…Safeway is a grocery store with a pharmacy.

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